Controlling the police may be the toughest management job there is. Every patrol study ever done shows that street cops work most effectively when they're given the discretion to respond instantly to trouble. As University of Chicago law professor Kenneth Culp Davis pointed out years ago, the police make far more discretionary determinations in individual cases than any other class of administrators. Culp said there was no close second. Yet police commanders need to know that cops are out there actually working productively and treating community residents fairly. The inevitable tensions are immense and made workable in New York only by the NYPD's evolving structure of carefully selecting, testing, and training recruits - and then supervising them under a chain of command. But in the end, decades of enhanced professionalization and reform mean little without one basic principle: trust. We all have to be able to trust that police officers -- armed and authorized by us to patrol our neighborhoods -- are honorable, decent, sensible people worthy of positions of trust.
The police commissioner's management authority has been undermined by federal Judge John Sprizzo's June 23 ruling, following a non-jury trial, that the city did not have the right to fire a police officer and two firefighters who rode in blackface and wore Afro wigs on a parade float in 1988. Police Officer Joseph Locurto and the two firefighters were punished, wrote Sprizzo, "in retaliation for engaging in protected speech." This "protected speech" involved being part of a float with the banner "Black to the Future: Broad Channel 2098," which the defendants said was a parody of black racial integration into the mainly white Broad Channel neighborhood. They threw watermelon and fried chicken at parade goers and, as the parade was ending, a firefighter grabbed the back of the truck and dangled himself toward the ground, re-enacting the brutal dragging murder of a black man in Texas two months earlier. (You can decide for yourself what you think of the activities on the float by watching the video offered by ABC News/Channel 7's web site.)
This activity constituted protected speech "on a matter of public concern," wrote Sprizzo, because the float sought "to comment on the future racial integration of Broad Channel" and to win the prize for the funniest float, "a prize the group had won in the past with other ethnicity-parodying floats." The group's earlier efforts included "The Gooks of Hazzard," which parodied Asian Americans, and "Hasidic Park" about Jewish Americans. Sprizzo rejected the city's claims about the management consequences of such public behavior going unpunished, writing that this "concern was unreasonable and, in any event, insufficient, as a matter of law, to outweigh plaintiff's constitutionally protected speech rights." The men are all seeking reinstatement in their jobs, back pay, and money damages. A hearing will be scheduled on remedies in the case. Corporation counsel says it will appeal.
COPS AND FIREFIGHTERS CLASH AFTER STUPID TRICK CAPER
Cops and firefighters were also in the news for another unfortunate conjunction of the two agencies. An inept burglar who had lowered himself into a chimney in Luigi's Italian Restaurant in Queens started screaming when he found himself stuck. A passerby called 911, which dispatched regular firefighters and police officers from the local 115th precinct, as well as members of two rescue units, the police Emergency Service United and fire's Rescue 4. Once on the scene, rescuers from the two agencies disagreed on how to extract the burglar from the chimney. Firefighters wanted to pull him out from above, while the police decided to rip out the wood paneling covering the shaft inside the restaurant, hacking through a layer of bricks. During the rescue, the police sealed the restaurant as a crime scene and ordered firefighter John Gaine to leave, resulting in a fight and Gaine's arrest. "Well, it's the kind of thing you simply hope would never happen," said Fire Commissioner Nicholas Scoppetta. Mayor Michael Bloomberg said that the police and fire commissioners are meeting to sort things out.
The daughter of the restaurant's owner had suggested pouring olive oil into the shaft to grease the burglar and pop him right out without smashing walls, according to the New York Times. On reflection, though, she decided the cops were right to ignore the idea: "Virgin olive oil is expensive. My mother would have been annoyed."
Luigi's owners told New York 1 that they had been watching "Stupid Acts Caught on Tape" when the whole caper started. They also said they were left with rubble at their restaurant. "Not I've got a hole, destruction, and a mess," said co-owner Josephine Napolitano.
NO DANCING ALLOWED-STILL
Supporters of dance in New York -- and who isn't? -- were elated when they heard that the city's Department of Consumer Affairs was going to be holding hearings on New York's repressive 77-year-old cabaret laws on June 24. Representatives of Legalize Dancing jubilantly predicted that the city's days of regulating, and banning, dancing were over.
The hearings proved to be no such thing. Formal and stale in format (all questions from the audience had to be submitted in writing), the hearings mainly provided a forum for a few important nightclub owners and representatives to complain about their main beefs. Thus David Rabin, owner of the humongous but fully licensed Lotus and president of the New York Nightlife Association, took the opportunity to protest the mayor's anti-smoking legislation, which nearly everyone in the industry regards as a lethal, business-killing law. One of these days New York is going to end up looking like Cleveland, he told Newsday's Dennis Duggan.
He also noted that the main problem for most neighborhoods is what he called "outside noise," rather than the noise from music and dancing in the club itself. The outside noise problem has been greatly exacerbated, of course, by the smoking ban, since smokers now congregate in the streets. Rabin said, however, that no nightclub owner calls the cops because that will only produce a "disorderly premise" ticket, which will then be used against the club's license renewal. Does Yankee Stadium get tickets, he asked, for disorderly patrons? Or Madison Square Garden? Not at all. Both of these are patrolled by cops -- some on duty, some as part of the NYPD's paid detailed unit of off-duty cops. Rabin would like nightclubs to be able to hire off-duty cops (preferably in uniform) to patrol outside the clubs, a proposal supported warmly by the police union, the PBA.
Under the state's Alcoholic Beverage Control Act, which forbids cops from being associated with alcohol sales, police officers are now prohibited from doing security work outside bars.
Sean Schwartz, owner of Halcyon, which lacks a cabaret license, argued that dancing should not be part of the equation to begin with. "It was wrong 77 years ago," said Schwartz, and wrong a few years ago for Giuliani to dust off and enforce the cabaret laws. Indeed, so far this year, the city has padlocked 11 places that permitted dancing without a cabaret license. Between 1999 and 2003, the city had closed 20. According to the New York Times, the Giuliani administration tended to remove or threaten places that held licenses as punishment for a range of violations, from inadequate exits to drug use by patrons.
Passed in 1926 to regulate (some historians say to suppress) jazz in Harlem, the cabaret laws targeted the "social mixing" that seemed to accompany jazz, says NYU Professor of Law Paul Chevigny, author of "Gigs: Jazz and the Cabaret Laws in New York City." The cabaret laws restrained jazz by requiring that a hard-to-get cabaret license be held by any restaurant that had live music.
In May 1986, the Musicians Union, represented by Chevigny, sued on First Amendment grounds. After a five-year legal battle, New York Supreme Court Judge David Saxe declared the three-musician rule unconstitutional, ruling that live music had to be allowed in zones permitting bars and restaurants. It was a great triumph, but the suit left alone the regulation of dancing, which remained subject to the cabaret license requirement.
Thus restaurants that allow dancing are still held to more stringent zoning requirements than other restaurants, which are permitted in all commercial and manufacturing zones. With their odious history, the cabaret laws have frequently gone unenforced. The Dinkins administration, for example, ignored them altogether. They were resuscitated, however, by the Giuliani administration, which saw them as a potentially powerful tool for shutting down huge, noisy, drug-infested nightclubs.
Relief from the city is not on the immediate horizon. Gretchen Dykstra, the consumer affairs commissioner, said that unless the laws change, which is doubtful, members of the nightlife task force (called March for Multi-Agency Response to Community Hotspots) will continue to crack down on unlicensed cabarets.
Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.
For years, Angela R. (as she is named in court records) had reported being beaten, attacked, dragged up and down staircases by her hair and even burnt by Victor Santiago, the man to whom she says she's married "by love," and with whom she has a child. She called 911 and visited hospital emergency rooms over and over. Police officers have heard him threaten to kill her after smashing all the furniture in their home. But like countless other victims of intimate violence, when the moment of truth had come -- testifying in open court -- Angela had declined to prosecute and the criminal cases against Santiago were dismissed.
Despite three decades' worth of changes in public awareness and policy since violence against women became a priority of the women's movement, victims still fear prosecuting their husband/boyfriend assailants. A daunting, ongoing problem for the criminal justice system and the women themselves is the victim's unwillingness or inability to participate as a complaining witness after she has called the police, and especially when she is needed to testify at trial.
But in the recent case of People v. Santiago, the Manhattan District Attorney and Acting Supreme Court Justice Jeffrey Atlas took a new approach -- the victims' prior statements about her beatings were allowed to be used as court testimony without her approval.
Angela had testified behind the closed doors of the grand jury, after an assistant district attorney assured her that the accused (Santiago) is never present at this stage. But when it came to the trial stage, when Santiago would be present, Angela refused to testify, and went so far as to threaten that, if forced to testify, she would declare that all the complaints had been fabricated by the police and prosecutor and even by herself. She enumerated her reasons -- she was ashamed to tell her story and be judged by other people; if Santiago were in jail, she could not afford to support their daughter; she loved him and no longer wished to press charges. Without Angela's testimony, Santiago could probably not be convicted.
The district attorney asked the judge for permission to read the grand jury minutes to the trial jury, an unusual criminal procedure, normally possible only if the complaining witness -- Angela R. -- has become "unavailable." Some domestic violence cases have been prosecuted through photos and medical records, but relying on the domestic victim's prior statements would be a new development.
At a pretrial hearing, where witnesses included an expert in battered women's syndrome, Angela R. told Justice Atlas that she and Victor Santiago had been together for "ten beautiful years." Santiago blew kisses to her in the courtroom and insisted that she is the one who hits him, but that he is a "forgiving kind of guy." The judge called much of the couple's testimony "patently incredible," and, in a decision that attorney Dorchen Leidholdt, director of Sanctuary for Families' Center for Battered Women's Legal Services, calls "extraordinary," Justice Atlas concluded that Santiago's violence, threats, chicanery or other acts of misconduct caused Angela R. to become "unavailable." The judge ruled that the prosecutor should be allowed to present to the trial jury her prior statements, including those she had made to the grand jury.
According to Leidholdt, "this decision moves (domestic violence) jurisprudence forward in a really important way," recognizing that domestic violence is of a completely different character than stranger-on-stranger crimes in which there can be a variety of reasons for recanting testimony or declining to proceed for reasons which are not based on fear, threats or witness tampering. "He's been abusing her for years, then calls her 100times from Riker's Island where he's being held. He cannot be allowed to benefit from his own outrageous behavior," she adds.
Brooklyn Law School Professor Elizabeth Schneider, author of BatteredWomen And Feminist Lawmaking (Yale) calls the decision very valuable in the specific facts of this case, but notes that "doing anything that is not what the victim wants is a problem." The issue, Professor Schneider says, is "whether you go with the woman's wishes or the evidence that she is recanting only out of fear or threats." Fear and threats are not the only problem. As Dr. Ann Wolbert Burgess, an expert on battered women's syndrome testified, the abusive male can also be seductive, romantic and exploit the victim's fantasies that everything will be fine.
Whatever the reasons for the recantation, Leidholdt applauds the decision for "not forcing Angela R. to face down the man who has repeatedly brutalized her." However, Carlin Meyer, professor of family law at New York Law School, while acknowledging that "hitters don't hit just one woman," and that therefore society -- not just Angela R. -- needs to be protected, adds, "but the state is never going to protect her."
Professor Meyer believes that "No one walks in the victim's shoes and she should be allowed to assess the potential danger to herself, the benefits and burdens, that flow from going forward with a complaint. The state (and the prosecutors who act for it) can't know if she's better off with her batterer working and not in jail. It's paternalistic for the state to force her to testify and act as if it knows better." She points to the possibility of a "slippery slope" where hearings might be skipped, experts disallowed and the rights of both parties might be jeopardized.
Leidholdt disagrees: "This decision," she says "is truly empowering."
Emily Jane Goodman is a New York State Supreme Court Justice
POLICE COMMISSIONER'S 24-PAGE APOLOGIA
In a remarkable break from past practice, Police Commissioner Raymond Kelly has issued a 24-page official report assigning blame in the catastrophic May 16 New York Police Department raid on the apartment of a church-going, 57-year-old woman, Alberta Spruill. At a tense 3:00 p.m. press conference on May 29, Kelly said, "Deficiencies were found in procedures and practices of the overall warrant process. Mistakes were made. We all make mistakes. It's a terrible tragedy that Miss Spruill lost her life." (Excerpts on Kelly's comments, including his defense of warrants and his pledge for reform, can be heard on Newsday's web site.)
The raid could hardly have gone more wrong. With no evidence of wrong-doing beyond the word of a drug-using known criminal, the NYPD secured a no-knock warrant to invade Spruill's apartment. At 6:15 a.m. on May 16, they executed the warrant by breaking down Spruill's apartment door as she was dressing to go to her city job, which she had held for 29 years. Incorrectly anticipating both resistance and a pit bull, the police detonated a flash grenade -- also called a concussion grenade -- which is used to blind and stun. The police realized almost immediately after handcuffing Spruill that the tidy apartment did not fit the informant's description of a messy place divided by a dirty curtain. But the damage was done. Spruill went into cardiac arrest and was pronounced dead at 7:50 a.m. at Harlem Hospital. Her death was ruled a homicide by the medical examiner.
The snarl of police errors, arrogance, and incompetence recorded in Kelly's report is stunning. Almost every decision leading up to the raid seems to have been flawed, sometimes inexcusably. Commanding officers did not confer with one another or share crucial information. Supervisors for the Emergency Service Unit, which led the raid, didn't know that NYPD policy required that flash grenades be approved by a top boss. Although several officers had serious doubt about the reliability of the informant, they did not relay this information to others. No one watched or canvassed Spruill's apartment to see if it seemed a likely household to shelter drugs, guns, and attack dogs. The drug dealer whose cache of drugs and weapons was being sought in the raid had in fact been arrested four days earlier on an assault warrant -- but precinct officers kept this information to themselves.
The brass at police headquarters are ignorant of much of what goes on in the field. The NYPD lacks a central database on informants and their reliability, says Kelly, as well as any central way of assessing the success or failure of executed search warrants, even though several such warrants resulted in disastrous raids on innocent families during the Giuliani administration. Kelly promised he would establish a database to track search warrants to uncover patterns of problematic searches.
"What we're doing," said the commissioner, "is seeing to it the best we can that something like this never happens again." Let's certainly hope so. Yet at a minimum this incident calls into question the reality of what journalist Michael Massing once called "The Blue Revolution," the idea that CompStat plus organizational innovations and changes in police culture had transformed the NYPD into an efficient crime-fighting machine.
90-DAY TRUCE ON CIVIL LIBERTIES OVER
As if to drive even conservative and/or police-friendly New Yorkers into the arms of the New York Civil Liberties Union on the issue of police spying, the NYPD has been asking political protestors such potent questions as "What kind of political sentiments do you hold?" and "What political organizations do you belong to?" as well as "Don't you think it was necessary for us to get involved in World War II?"
In hearings before federal judge Charles Haight in Manhattan, civil liberties groups are asking that the 3-month-old modification to the Handschu Agreement, which since 1985 had restricted police spying, be modified again to forbid such NYPD questioning. Judge Haight was unhappy with the police, saying, "I find this most recent activity troubling." The NYCLU is hopeful that the NYPD's overstepping will encourage Judge Haight to reconsider his February expansion of NYPD surveillance powers.
CROWN HEIGHTS AND NYC'S CYCLES OF CRIME
What are we to make of the Nelson Lemrick debacle? The familiar details remain chilling. On Aug. 19, 1991, a 7-year-old black child, Gavin Cato, was killed (and another child severely injured) in Crown Heights after being struck by a Jewish driver speeding through a red light. Several hours later and several blocks away, then 16-year-old Lemrick Nelson joined a mob of blacks shouting "There's a Jew! Let's get the Jew! Kill the Jew!" while pursuing a 29-year-old rabbinical student, Yankel Rosenbaum. Nelson stabbed Rosenbaum, who later died of internal bleeding in the Kings County Hospital emergency room, where doctors had failed to notice the deep wound. Before he died, Rosenbaum identified Nelson as the assailant who stabbed him.
Yet the practical outcome of the latest of Nelson's three jury Trials -- two federal, one state, all held in Brooklyn -- is that Nelson will spend no more than an additional year in prison. His 1997 conviction on federal civil rights violations in his second trial had resulted in a prison sentence of 19-1/2 years. But a federal appeals court reversed the conviction after concluding that the trial judge had improperly balanced the number of Jews and blacks on the jury. The federal prosecution followed a state trial in 1992 in which Nelson was acquitted by a jury which concluded that he had been framed by a racist police force. Jurors later notoriously celebrated with Nelson and his lawyers.
You might think that by this time everything has been said, but it hasn't been. For one thing, the historical context of these terrible events has been missing. Rosenbaum's 1991 murder occurred at the very end of what had been a period of unusually violent crime in New York, what UCLA historian Erik Monkkonen has called "a rogue tidal wave of violence in the last quarter of the twentieth century." For most of its history, New York City had a far lower crime rate than the nation as a whole -- until 1958, when violent crime started heading up. What we commonly think of as New York's high crime rate is in fact a historical anomaly. Now that crime has been in a downward spiral for 11 years, New Yorkers need to keep it that way.
But Monkkonen argues that in past cycles, once some "lower level of violence had been achieved, the mechanisms for control and the value of peace get forgotten, and a slow rebirth of violence begins." As Lemrick Nelson begins serving his minimal sentence, will it happen that crime will start back up? In other words, just as his crime occurred at the end of a cycle of high violence, will his punishment signal the beginning of a new cycle of serious violence? Already, rape has been steadily rising for months, and murder has also been up.
Nelson himself is part of a disturbing historic trend, the large increase in killings by youngsters in New York. The proportion of killers younger than 18 quickly rose from about nine percent in 1976 to a peak of nearly 16 percent in 1993. When these killers are released, as Nelson will be after a short stint, they have decades of potential violence ahead of them. Thus an overly mild justice system can fuel an upward spiral of crime.
Despite admitting he had stabbed Rosenbaum, Nelson was found not guilty of any charges by the first state jury and not guilty of the most serious charge by the latest federal jury. This leniency, according to Monkkonen's 19th century data, is typical of the tendency of New York juries to give offenders the benefit of the doubt -- a tendency that has often led to justice but in this instance to grave injustice. "In a city filled with bars, rowdiness, and a good deal of physical violence, the all-important coroner's juries often placed themselves in the offender's situation and found the deaths to be accidental," says Monkkonen.
Indeed, although about half of all 19th century murderers in New York were arrested, less than half of these were tried, and only about half of these were convicted. Of the 10.7 percent convicted, three-fourths were sentenced to fewer than 7 years in prison, and a large proportion of these were pardoned. Leniency was the "central element" of the criminal court system.
There is also a historical link between major riots and personal violence, according to Monkkonen's data. Most of the city's serious riots have occurred during times of high violence. He believes, though his data cannot prove, that while some rioters are rationally motivated, many violent individuals simply use the crowd as a mask, becoming more violent in riots. But the real lesson is that a violent culture produces far greater violence during rioting than a less violent culture does.
What this means for the city's future is that keeping violent crime down is the nonnegotiable base of the city's well-being. If violent crime heads up seriously, it will destroy New York. It almost did in our recent memories. And here is the latest bad news: the NYPD's crime statistics show that 215 people were murdered in the five boroughs between January 1 and May 25. This is up from 202 murders in the same period last year.
Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.